Wednesday, 10 April 2013

BC’s Freedom of Information and Protection of Privacy Act is supposed make government more accountable.The Act gives the public a legal right of
access to government records.This
right is subject to a number of exceptions.For example, documents protected by solicitor-client privilege cannot be
disclosed.Confidential business and
labour-relations information cannot be disclosed.Information which would harm public safety
and law enforcement cannot be disclosed. And so on.The exceptions are not loopholes.They are essential to the attempt to strike a
balance between the public’s right to know, and the need in certain
circumstances for confidentiality.

The Act is enormously
well-intentioned.No one questions the
need for government transparency as a general principle.But legislating access has had unintended
consequences that illustrate what happens when we turn our policy aspirations
into law.

The application of the Act’s legally
binding rights and exceptions cannot be done casually.The
officials in every public body who administer it must apply its requirements
page by page, and sometimes line by line.That’s the process – required by law – which produces those whited out “redacted”
documents that reporters and activists wave at TV cameras, conveniently
forgetting that the passages they say we have a right to see are in fact
exactly the opposite- statements that
cannot be disclosed without violating the law.Some of the exceptions are mandatory, some are discretionary, but they
all must be considered and applied.

Here then is the first unintended
consequence of enacting access to information rights. You might wish that there was a culture of
openness inside government.But FOI
legislation necessarily compromises that aspiration.It’s the application of the exceptions from
disclosure that takes up most of the time and energy associated with processing
access to information requests.And in a
very real sense that is an exercise that is more about getting to no than it is
about getting to yes.It’s legal, it’s
bureaucratic, it’s rule-bound, and it’s necessarily expensive and burdensome.That’s what happens when you take a perfectly
good policy idea and install a complex legal regime in its stead.

Another unintended consequence of
enacting access rights is to create an incentive to drive some kinds of
government communication underground. To explain that point, I need to digress
for a moment.

In the early years of the BC Treaty
Commission process, there was concern in some quarters that government
negotiators would cut excessively favourable deals with First Nations behind
closed doors, without adequately consulting all the potentially affected
business and community interests.In
response to these concerns the parties agreed that so-called main table treaty
negotiations would take place in public.So everyone could see what was being demanded, proposed and negotiated.

The result was that real
negotiations no longer took place at those main tables.Instead, the conversations that are essential
to effective negotiation, where the parties tentatively explore options, test
the existence and limits of common and contested ground, and look for creative solutions
to positional obstacles, moved out of the negotiation room and into hallways
and corridors, coffee shops and beer parlours, where they could take place in
private.Agreements, if reached, would
be announced at the public main table.That exercise in public communication might still have some value,
because at least we could see what was being decided, and whether there was any
real progress.But no one could credibly
suggest that the negotiations themselves were public.

In the same vein, I heard a story a
few days ago about a city council that, after years of public dysfunction, has
decided to have a private pre-meeting before every public meeting.Away from the glare and glory of TV lights,
the councilors go through the agenda as a problem-solving exercise, looking for
consensus where possible, identifying and clarifying the issues that really do
need debate, exploring and test-driving opportunities for compromise; trying,
in other words, to find a way actually to lead their community, rather than
simply parade their ability to score points off each other in public.Once again, the real work of governing is
being done outside public view.

Here is the plain truth. Some
public business simply cannot – or will not - be done in the public eye.Forcing delicate issues and conversations
onto the public stage will cause public officials to become blander, or more
positional, or both.The knowledge that
our every word could become a banner headline on the front page of the morning
newspaper changes what we say, and how we say it.And so a second inevitable if unintended
consequence of access to information legislation (even with exceptions) is to
drive some kinds of government communication offline.Out into the hallways, or into unofficial
channels like private email accounts.Sometimes this is understandable and excusable; other times, clearly not
so. But it’s inevitable.

What to do about this? The usual
response is to demand tougher laws.Force the politicians and bureaucrats to write everything down!Once
you’ve started legislating access rights, it’s hard to stop.And just like a drug addict, when the dosage
you’ve become accustomed to doesn’t give you a good enough high, it’s time to
up the dosage.As a result there is
virtually no chance of “un-legislating” access rights and returning to a world
where information access is a policy objective, rather than a legal
straitjacket.Nor am I certain this
would be a step in the right direction.

But I do suggest that forcing
politicians and bureaucrats to put into writing everything they think, say, or
do won’t necessarily make for better government.Instead it may dilute the content and quality
of official discourse.No matter how
tough the law, the folks who are required to solve our most difficult problems
will always find a way to talk out the solutions somewhere out of sight around
a corner along the corridors of power.